Held the primary court misdirected itself as to the

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Held: The primary court misdirected itself as to the burden of proof. “If a woman is living with a man in concubinage, he is held responsible for her preg- nancy. If the man wants to deny paternity, it is up to him to prove his claim. [G.N. No. 279/63, s. 188. Also citing s. 183]. Judgment for plaintiff, relief as prayed. 205. Bigwomunda Mulaula v. Bahanda Rwojo , (PC) Civ. App. 135-D-67, 25/4/68, Saudi J.
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Deceased made a will in which he made plaintiff the guardian of his daughter; his property to pass to plaintiff upon the daughter’s death, thus disinheriting de- ceased’s brother, the defendant. The will was not signed by the testator or the four witnesses; no clan members were called, and no reason was given for the disinheritance. Upon the daughter’s death defendant took possession of a sham- ba which was part of deceased’s estate, and plaintiff then sued for possession. Held: Where a testator intends to disinherit the members of his family by means of Kubachwa, at least ten witnesses must be called, including either close relatives of the testator or the head of his clan or clan sub-division. The testator must give an explanation for his actions, and the prospective witnesses are to refuse to witness the will if not satisfied with his reasons. [Citing Zelamura Ka- nyamajugo v. Mtungi Katabazi, Civ. App. 2 of 1960, Local Digest No. 39 Cory, Customary Law of the Haya Tribe, paras. 41, 42, 44, 46, 48]. The Court stated, obiter, “I personally feel that ‘kubachwa’ is a practice that should not be encour- aged as it takes its roots from the base nature of man and fosters hatred.” De- fendant’s appeal dismissed. (1968)H.C.D. - 72 – 206. Miss Asia d/o Amiri v. Ahmed s/o David , (PC) Civ. App. 67-A-66, 21/3/68, Seaton J. Plaintiff, the former wife, sued defendant, the former husband, for custody of a child. Plaintiff and defendant eloped in 1961 after defendant, a Christian, had agreed to adopt plaintiff’s Muslim faith. At that time, dowry was paid according to Pare customary law, but they were not married until over a year later, and the child was born in the interim. The marriage was performed according to Islmic law after defendant conversion. The parties were divorced in 1966. At the time of the suit, defendant had remarried but plaintiff had not, and the child was living with defendant. Held: (1) According to Islamic law if a man commits zinaa (fornication or adultery) the child is considered to be the child of the mother only. However, a
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child is legitimate if born as a result of a regular or irregular marriage (the latter being a marriage prohibited because of difference of religion ) or by “acknowled- gement.” [Citing Mulla Principles of Mohamedan Law, (15 th ed. 1961) p. 282]. (2) According to Pare customary law, “A father has the right to legitimate his illegiti- mate children at any time by marrying their mother.” [S. 181 A of the Law of Per- sons, G. N. 279 of 1963, as applied by Local Customary Law (Declaration) (No.
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  • Fall '17
  • Dean Majamba

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